Baku City Court on Grave Crimes found Mustafa Hajili guilty and conditionally sentenced him to 5 years and 6 months.
The analysis of violation of the law during Mustafa Hajili’s
Baku Court on Grave Crimes
February 21, 2019
Presiding Judge: Sabuhi Huseynov
Judges: Azad Majidov, Zeynal Agayev
Accused: Mustafa Hajili
Defender: Osman Kazimov
Public Prosecutor: Anar Tarverdiev
On July 9, 2018, Karabakh war veteran, a disabled person of the 3rd category, a member of opposition party Musavat, also a founder and editor-in-chief of the informative website www.bastainfo.com Mustafa Hajili was summoned for questioning to the Department for Investigation of Grave Crimes of the Prosecutor General’s Office of the Republic of Azerbaijan. The questioning was linked to several publications on a website – managed by him. During several months, Mustafa Hajili was repeatedly questioned. From M. Hajili’s interview to mass media: “From July 9, I am being questioned for several hours each day at the Prosecutor’s Office. Today (on July 20, 2018), I was asked several questions regarding the publications of two years’ prescription, which have absolutely nothing to do with a criminal case. In fact, I am being kept under psychological pressure for several days. I am being asked the questions, which are not related to a given criminal case. I consider, what is going on at present, as a pressure directed towards me”.
Criminal case was initiated on account of July 3rd, 2018, assassination attempt on the chief of the executive power of Ganja city and police officers. Public Prosecutor’s Office issued a statement, stating that some news media disseminated information that do not represent the facts, and are of a propagandistic nature.
In connection with this, a criminal case under Articles 214.2 (public appeals to terrorism), 281.1 (public appeals directed against the state), and 313.3 (service forgery, that is deliberately disseminating false data in informative resources by the official) of the Criminal Code of the AR was initiated.
On the grounds of criminal case, the Prosecutor’s General Office referred to the Ministry of Transport, Communication and High Technologies, with a request to limit the access to the following websites: www.bastainfo.com, www.criminalaz.com и www.fia.az. After this, the administration and workers of these websites were questioned for hours, during several days, at the Prosecutor’s Office.
On November 30, 2018, Baku City Prosecutor’s Office, whereto the criminal case was sent, accused M. Hajili in committing crimes under Articles 281.2 (public appeals directed against the state), 309.2 (excess of official powers), 313 (service forgery) of the Criminal Code of the AR. A restrictive measure in form of placement under police supervision was chosen against M. Hajili. According to a given restrictive measure, M. Hajili shouldresort to a police department each Friday, and should register his presence; he should also notify police prior leaving Baku.
The criminal case was sent to Baku City Court on Grave Crimes. The preparatory meeting was scheduled for January 11, 2019. At the meeting, Prosecutor read out indictment. According to indictment, “on July 5th, 2018, the article “Energy blackout in Mingachevir did not stop repressive machine”, and on July 6th, 2018, the article “Azerbaijanis created a model of social resistance for themselves” were published at the website – headed by M. Hajili. In given articles, there were public appeals directed towards violent capture of power and violent change of the constitutional grounds of the Republic of Azerbaijan.”
During trial proceedings, Mustafa Hajili did not plead guilty, he stated that the criminal case against him is groundless. He also stated that he would testify only after witnesses to the case are questioned. In capacity of the witnesses to this case, the workers of the website: Konul Aliyeva, Heybat Amrah, and Rufat Bakhisov were summoned to the court.
The witness Heybat Amrah testified that he is a member of Musavat Party, that he knows Mustafa Hajili since 90s, and works at the website on a voluntary basis. The witness Konul Aliyeva testified that both articles were taken from the website of informative-agency Turan, and because of that www.bastainfo.com does not carry any responsibilities for them. She expressed her resentment to the fact that the criminal case was initiated against the website. Rufat Bakhisov also testified that articles were taken from a website of Turan agency. One of the articles speaks about a photo of Yunis Safarov who committed an assassination attempt towards the chief of the executive power of Ganja city. A photo shows the traces of tortures on his body, and according to unofficial data, his photo was widespread at social network by police itself. All witnesses, the workers of the website testified that they are working on a voluntary basis. M. Hajili’s lawyer, Osman Kazimov stated that these witnesses had nothing to do with accusations.
On January 29, 2019, the victims to the case – Ilaha Xalidova, Arzuxanim Mammadova, Zulfiya Babayeva were scheduled to be questioned at the court. According to investigators, these witnesses experienced anxiety after reading above mentioned articles. However, none of the witnesses appeared at the court.
The victims only testified on February 19, 2019, at judicial sitting. They testified that after reading articles they felt anxiety and that is why they submitted complaint to the law enforcement agencies. However, while answering to M. Hajili’s and his defender’s questions, they could not remember a single sentence from these articles. The victims testified that these articles spoke about an assassination attempt on the chief of the executive power of Ganja city Elmar Valiyev, and there were also appeals for public disorders.
The lawyer asked from the court to show these articles to the victims and asked from victims to reply: “ Dear witness, please read the articles out loudly, and tell what sentence contains public appeals. Please, show this sentence here”. Public prosecutor protested to this request. After the victims were questioned, Mustafa Hajili filed a complaint, stating that all testimonies given by witnesses were false and asked from the court to remove them from the list of the evidences. The court made a decision to leave M. Hajili’s complaint unreviewed.
On February 21, 2019, Baku City Court on Grave Crimes announced verdict. According to verdict, Court found Mustafa Hajili guilty and sentenced him conditionally to 5 years and 6 months of criminal punishment with a period of 2 year probation. Court also passed a decision to ban M. Hajili from holding any position in any state or self-governed institutions.
Commentary by an expert lawyer:
The court decision is unlawful and groundless. During trial, the norms of substantive and procedural law of both national and international legislation were violated. M. Hajili was accused in violation of the Articles 281.2 (public appeals directed against the state), 309.2 (excess of official powers), 313 (service forgery) of the Criminal Code of the AR.
Public appeals to violent capture of power, violent deduction power or violent change of the constitutional grounds – is a crime, which may be accomplished deliberately and with direct intentions. This means that, the crime shall be admitted as committed with direct intention, if the person realized public danger of the act, expected its publicly dangerous consequences and wished their approach. In order to consider above mentioned crime as accomplished, the public appeal must be deliberate and with direct intentions. The condition of the direct intention is wishing its direct approach. One of the conditions that stipulates the publicity of the call, is a presence of a specific circle, to which the call is addressed. If public call is disseminated with the purpose of committing a crime, then it must without fail be directed towards specific audience.
Suppose that a public call is directed towards some well-known circle. Then, there is a question if this circle is able to realize this call or not? The important condition to commit the act as prescribed by Article 281 of the Criminal Code of the AR, is the availability of necessary resources, possession of the resources by the circle to which the appeal is directed. It must be taken under account, that violent change of the constitutional grounds is not ordinary action of the hooliganism: http://www.contact.az/ext/news/2019/2/free/Want%20to%20Say/ru/78896.htm In journalist’s case, none of all above mentioned conditions were met, and therefore there was no corpus delicti.
Besides the substantive legal norms, the procedural norms were violated during the investigation and trial. Thus, according to article 21.2. of the Code of Criminal Procedure of the Azerbaijan Republic, even if there are reasonable suspicions as to the guilt of the person, this shall not cause the latter to be found guilty. The accused (the suspect) shall receive the benefit of any doubts which cannot be removed in the process of proving the charge in accordance with the provisions of this Code, within the appropriate legal proceedings. He shall likewise receive the benefit of any doubts which are not removed in the application of criminal law and criminal procedure legislation.
The trial on the criminal case did not prove the guilt of the accused. Investigating authorities failed to provide the court with enough sufficient amount of the irrefutable and convincing evidences to prove journalist’s guilt. The entire accusation was built only on the testimonies of the victims, who, during the court, were not able to show the words and sentences, used in the articles, which caused them anxiety. Even though according to Article 21.3 of the Code of Criminal Procedure of the Azerbaijan Republic the accused shall not be obliged to prove his innocence. It shall be for the prosecution to prove the charge or to refute the evidence given in defence of the suspect or the accused.
Article 28.1 of the Code of Criminal Procedure of the AR : “Courts shall hear criminal cases and other prosecution matters in accordance with the legal procedures established by this Code, on the basis of the facts and of impartiality and justice.”
The given criminal case should’ve already been suspended during the preliminary hearing, since there was no corpus delicti in M.Hajili’s act. One more circumstance is prescribed by Article 39.2 of the Code of Criminal Procedure of the AR, a criminal prosecution may not start or shall be discontinued (and the criminal case may not be begun or proceedings in the criminal case shall be discontinued) in the following circumstances if the act does not have a criminal content. M. Hajili’s guilt was not proven at the court.
The individuals who were recognised as victims, could not explain at the court, what damage they suffered from reading those articles, to what led their anxiety and if there were any consequences. According to Article 87.1 of the Code of Criminal Procedure of the AR: If there are sufficient grounds to show that the individual suffered direct non- material, physical or material damage as a result of the act provided for in criminal law, he shall be referred to as a victim.
During judicial investigation, the defence and the editor himself submitted to the court corresponding applications. However, none of them were reviewed. Although, according to Article 121. 2 of the Code of Criminal Procedure of the AR, reasons shall be given for the decision taken on an application or request, together with an assessment of the applicant’s arguments. Applications and requests for any matters connected with the prosecution to be examined thoroughly, fully and objectively under the required legal procedure, and for the violated rights and legal interests of the parties to the criminal proceedings and of other participants in the proceedings to be restored, may not be rejected.
The evidences that were collected by investigative authority, must be examined separately. The list of evidences contain: victims’ testimonies, the report of a linguistic examination, witnesses’ testimonies, a notice of the Ministry of the Transport, Communications and High Technologies.
As was mentioned above: · the victims could not explain at the court, what damage they suffered from by reading those articles; · none of the witnesses testified against accused; · According to the legislation, a report of a linguistic examination is not obligatory for the court. The judge evaluates all the evidences together, and passes decision about the guiltiness of a person.
Facts which need to be proven:
· the facts and circumstances of the criminal act (Article 139.0.1 of the Code of Criminal Procedure of the AR) · the connection of the suspect or accused with the criminal act (Article 139.0.2 of the Code of Criminal Procedure of the AR)
· the criminal ingredients of the act provided for in criminal law (Article 139.0.3 of the Code of Criminal Procedure of the AR)
· the guilt of the person in committing the act provided for in criminal law (Article 139.0.4 of the Code of Criminal Procedure of the AR)
· the circumstances which mitigate or aggravate the punishment for which criminal law provides (Article 139.0.5 of the Code of Criminal Procedure of the AR)
· if there is no other circumstance covered by this Code, the grounds for a request by a party to the criminal proceedings or another participant in the proceedings ( Article 139.0.6 of the Code of Criminal Procedure of the AR)
None of the evidences collected by the investigatory authority were irrefutable and convincing to prove M. Hajili’s guilt. Court should’ve declared M. Hajili innocent of the offence and acquitted him, because of the absence of the criminal content in the act and because the guilt was not proven (Articles 42.1., 42.1.2., 42.1.4. of the Code of Criminal Procedure of the AR).
During the analysis of Mustafa Hajili’s judicial proceedings, it became known that international legal norms were also violated towards journalist. For example: Article 6 (1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms were violated. According to this Article: “ In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitle to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” The case was not reviewed fairly and impartially, since the evidences collected for this case were not enough to convince prosecution. All doubts were not interpreted by the court in favour of the accused. On the contrary, they became grounds of the unlawful accusation.
In addition, Article 10 (1) of the European Convention, which enshrines the right of everyone to freedom of expression, was violated. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers
In accordance with Article 50 of the Constitution of the Azerbaijan Republic, everyone is free to look for, acquire, transfer, prepare and distribute information. Journalist made use of the right, provided to him by national and international legislation.
If we conduct a test, which as a rule, is conducted by the European Court of Human Rights during decision making on the violation of the Article 10 of European Convention, then we will see that there was, in fact, state organ’s intervention into this right, it did not carry any legitimate purpose, and was not “needed in a democratic society”. Besides, articles were taken from another website, and this fact was not taken into account by the court at all.
The analysis of Mustafa Hajili’s trial proceedings clearly demonstrates the numerous violations of a national and international law during the trial.
International organization “Reporters without borders” sharply condemned the verdict of the chief editor of www.bastainfo.com.